Neighbourhood Planning Act 2017

As most readers will be aware by now, the Neighbourhood Planning Bill received royal assent immediately before parliament was prorogued last week. Only sections 1 to 7 are concerned with neighbourhood planning, and these provisions will not come into effect for the time being. Sections 8 to 13 deal with local development documents, and these too will have to await implementation until some time after the General Election.

The three sections that are of wider interest are sections 14, 15 and 17, together with Schedule 3. (The remainder of the Act – from section 18 onwards is all about compulsory purchase.)

Section 14 will introduce restrictions on the imposition of planning conditions, but will not come into effect until a commencement order is made. Schedule 3 to the Act will make consequential changes to existing legislation in respect of planning conditions. I have previously commented on this part of the Bill, and will revert to its provisions in a later blog post, when it takes effect.

Section 15 requires the Secretary of State to amend the GPDO “as soon as reasonably practicable after the coming into force of this section” to restrict permitted development rights currently applying to pubs and wine bars, etc., but only if they actually fall within Use Class A4. As I have pointed out before, many of these “drinking establishments” actually fall within Use Class A3 rather than A4, due to the service of food being a significant part of their business.

This section came into immediate effect on the passing of the Act, and DeCLoG has wasted no time in making the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2017 (SI 2017 No.619) on 28 April, which will come into force on 23 May. (I confess to having raised an eyebrow when I saw that this amendment order had been laid before parliament on 28 April, the day after prorogation (albeit before the dissolution of parliament today). I will comment on these provisions in a separate blog post shortly.

Section 17 has also come into immediate effect. It extends the scope of the planning register that must be maintained by LPAs. Again, I have already commented on this in a previous blog post, and I will come back to it later.

And that’s it really. Those concerned with the preparation of Neighbourhood Plans and Local Plans will want to get to grips with the sections of the Act dealing with these topics. Similarly, compulsory purchase specialists will need to get their heads around Part 2 of the Act. But this Act is hardly revolutionary in its effects, and is just another example of the endless tinkering with planning legislation in which successive governments have dabbled for far too many years.

In the meantime, the 1990 Planning Acts, together with the numerous subsequent amendments that have been made to them, remain unconsolidated, so that we now have some pretty nonsensical section numbering in the principal Act. However, I suspect the government will be occupied by far more pressing concerns in the next few years, and so I don’t hold out much hope for a consolidating Act any time soon.

© MARTIN H GOODALL

House-painting not within the scope of section 215

It is an unbreakable law of the universe that whenever I go on holiday some interesting planning law issues suddenly pop up while I am away. The past fortnight has been no exception. Having got back to my desk, I am going to start with the latest episode in the Saga of the Stripey House. (I will look at one or two other new topics over the next week or two.)

As I have explained in previous blog posts on this bout of lengthy legal warfare, I have no intention of taking sides, but am interested in the legal issues that it throws up. If you refer back to the blog post I wrote on Monday 15 August 2016, you will see there my report on the issue that eventually came before the High Court last week, and prompted a fresh round of news stories, most of which entirely missed the point of these particular proceedings.

The LPA (Kensington & Chelsea – “RBKC”) had served a section 215 Notice on the owner of this property after the owner, Mrs Zipporah Lisle-Mainwaring, had painted the whole of the road frontage of the house in vertical red and white stripes. The Council required it to be repainted plain white. This was appealed to the magistrates’ court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by HH Judge Johnson on 12 July 2016. It was this decision that was the subject of last week’s further appeal to the High Court.- R (Lisle-Mainwaring) v. Isleworth Crown Court and RBKC [2017] EWHC 904 (Admin).

The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. The amenity of an area would not normally be adversely affected by the external decoration of a building, but the Crown Court judge had been influenced by the fact that this was a house in a conservation area, and painting the house in red-and-white vertical stripes was, he said, unsightly. His honour had therefore held that the notice had been properly served under section 215 and should be upheld.

It was the appellant’s submission, both before the Crown Court and in the High Court, that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.

HH Judge Johnson had been persuaded by the LPA that "amenity" is a broad concept, not defined by the section. He had therefore held that it is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215 (citing Berg v. Salford City Council [2013] EWHC 2599 (Admin)). The "condition of land", his honour had determined, refers to the current state of the land, and a section 215 notice could therefore be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. Something that affects visual amenity, his honour held, is enough to justify issuing a section 215 notice.

The Crown Court appears to have been influenced by the fact that the subject property is in a conservation area. Painting the outside of a building would not in the ordinary way adversely affect amenity. However, his honour had observed that one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes, he had held, was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly and, in his honour’s judgment, section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

Notwithstanding these findings, Gilbart J allowed Mrs Lisle-Mainwaring’s appeal in the High Court last week.

At the heart of this case is the issue of statutory interpretation. Gilbart J took as his starting point the words of Lord Scarman in Pioneer Aggregates,when he said:

“ ............If the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole. ”

Gilbart J pointed out that the interpretation of Section 215 is not referable to, or affected by, the fact that a building in issue falls within a Conservation Area. On the other hand, the nature of the surrounding area may be relevant to its application, as consideration of the effects of amenity inevitably involves considering the effect of the condition of the land on its surroundings (bearing in mind that land includes a building - see s 336(1) of the 1990 Act). In that context, in Gilbart J’s judgment it is impermissible for a Magistrates’ or Crown Court sitting on an appeal to take account of the terms of planning policies or of the reason for the designation of a Conservation Area. A Magistrates’ Court or a Crown Court is not the appropriate forum to consider and determine the interpretation or application of planning policies. Had such planning merits been relevant, one would have expected the appellate route in the legislation to have been to the Secretary of State or his Inspectors, as it is in the case of refusal of planning permission. The concern of the Magistrates’ Court or of the Crown Court is to look solely at the facts.

Turning to section 215 itself, Gilbart J pointed out that the origins of this section go right back to the 1947 Act, when this provision was limited to cases where the amenity of the Council’s area, or of an adjoining area, was seriously injured by the condition of any garden, vacant site, or other open land in their area. The definition is now more broadly drawn, but is still limited to cases where the condition of the land (or building) adversely affects the character of the area.

What is meant by “condition of the land?” In his lordship’s judgment, one must be careful to avoid a catch-all definition that exceeds the proper bounds of the power. The purpose of section 215 is to deal with land or buildings whose condition, in the usual sense of that word, is such as to cause an adverse effect on amenity. The section is not designed to deal with questions of aesthetics or taste, nor to exercise a control over development which affects the choice of exterior finish. His lordship did not read the judgment in Berg v Salford City Council (relied on in the Crown Court) as supporting the argument that a local planning authority has the right to use section 215 to deal with a choice of finish which it dislikes.

One issue that has arisen in a number of cases of statutory interpretation is the relevance (or otherwise) of the heading or side note on the statute. (In the case of section 215, the heading to Chapter II of this Part of the Act reads: “Land adversely affecting amenity of neighbourhood”, and the heading to section 215 itself reads: “Power to require proper maintenance of land”.) The House of Lords has issued definitive guidance on the use of such material in R v Montila [2004] UKHL 50. In the words of Lord Hope of Craighead:

“The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book. .............

The headings and sidenotes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. .......... The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used.”

Gilbart J therefore considered the heading to section 215 in this context. It could not be doubted that “proper maintenance of land” is directed to the maintenance of the land, or in the case of a building, of its fabric. In his judgment, given that assistance, it was hard to see how one could criticise a building owner for a want of maintenance on the basis that s/he had chosen a colour scheme which was thought unattractive.

What affected the amenity of the area in this case, and was found to do so by the Crown Court, was the choice of colour scheme. This was, and was only, a matter of aesthetics. Parliament had not sought to prevent landowners, including those in Conservation Areas, from painting their houses in any colour or colours they wish (save where an Article 4 direction has been made).

In Gilbart J’s judgement, to allow an LPA to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation would fall outside the intention and spirit of the Planning Code. An LPA has the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. Here, RBKC had ample steps available to it under the Planning Code which would have protected amenity, and would have exposed it to minimal cost. Under section 102 it could have issued a notice requiring the repainting of the building. Were such a notice upheld, the level of compensation would be the diminution of the interest in the land (section 115 of the 1990 Act). On the basis of RBKC’s own case, that diminution in value must have been effectively Nil. There would at worst be a claim for the cost of the repainting (section 115(3)).

Gilbart J was therefore of the view that it is an improper use of section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land. It followed that the Notice and the decision of the Crown Court had to be quashed.

© MARTIN H GOODALL

Latest changes to the GPDO

In a piece that I posted on Friday 29 July last year (“Enlarged part of the dwellinghouse”) in which I commented on the judgment of the High Court in Hilton v SSCLG [2016] EWHC 1861 (Admin), I suggested in an addendum that if any ambiguity may possibly arise from the use of the phrase “the enlarged part of the dwellinghouse” in Part 1, Class A, of the Second Schedule to the GPDO, this could readily be resolved by a simple amendment to the GPDO, rather than resorting to the Court of Appeal in an effort to reverse the High Court decision in Hilton.

As briefly noted in a couple of recent comments on that piece, DeCLoG has indeed taken the opportunity to deal with the issue by way of an amendment to the GPDO. This amendment, together with certain amendments to Part 4 of the Second Schedule to the GPDO, was included in the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2017 [SI 2017 No. 391], which was made on 14 March, laid before Parliament on 15 March and comes into force today (6 April).

The amendments to Part 1, Class A now make it clear that the limit on the maximum dimension of a domestic extension under this Class applies to the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined). This total must not exceed the limits set out in sub-paragraphs (e) to (j). This is what I (and no doubt others) had always understood to be the intention of the legislation, but this amendment puts the matter beyond doubt.

The limitation that applies to Article 2(3) land (land within a Conservation Area, an Area of Outstanding Natural Beauty, a National Park, a World Heritage Site or the Broads), i.e. a domestic extension at the side of a house, or a single storey extension at the rear of the house, is similarly clarified. In these two cases, the total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) must not exceed the limits set out in sub-paragraphs (b) and (c).

The opportunity has also been taken to change paragraph A.3(c), so that it now provides that where the enlarged part of the dwellinghouse has more than a single storey, or forms an upper storey on an existing enlargement of the original dwellinghouse, the roof pitch of the enlarged part must, so far as practicable, be the same as the roof pitch of the original dwellinghouse.

In order to enable the LPA to ensure compliance with these limits on the size of extensions, there is an additional requirement as to the information to be supplied when making a prior approval application for a larger domestic extension. This must now include (in accordance with paragraph A.4(2)(a)) information in respect of the total enlargement (being the enlarged part together with the existing enlargement to which it will be joined). Similarly, the plan provided in accordance with paragraph A.4(2)(b) must show not only the extension in respect of which the prior approval application is made, but also any existing enlargement of the original dwellinghouse to which the enlarged part will be joined; and the LPA, in notifying adjoining owners or occupiers of the application under paragraph A.4(5)(a), must describe the development by setting out all the information provided to the authority by the developer under paragraph A.4(2)(a), and this would include the information as to the total size of the existing and proposed extensions to the property compared with the size of the original dwellinghouse.

The changes made by this amendment order to Part 1, Class A, are not retrospective in their effect. So they do not apply to development where a prior approval application in respect of a larger domestic extension was made to the LPA before 6 April 2017; nor do they affect building operations which began before 6 April 2017, provided the development is completed by 6 April 2020.

Changes to PD for Schools

As regards Part 4, Class C, which (up to now) has permitted the use of a building and any land within its curtilage as a state-funded school for a single academic year, this is now extended to use for up to two academic years, but this permitted development right may still only be used once in relation to a particular site. The site must revert to its previous lawful use at the end of the second academic year or when it is no longer required for use as a state-funded school, whichever is earlier.

Where, on or before 6 April 2017, a building is or has been used as a state-funded school under a permission granted by Class C of Part 4, the permitted development right granted by Class C, as amended by this 2017 amendment order, applies to such a building as if the reference to “two academic years” were a reference to “a further academic year”. So the previous one-year use, where it has been implemented, is automatically extended to two years. In addition, a new class of permitted development has now been added to Part 4. This is Class CA, which permits the provision of a temporary state-funded school on previously vacant commercial land. The permission is for the provision of temporary school buildings on vacant commercial land and the use of that land as a state-funded school for up to three academic years. [“Vacant commercial land” means any land on which all buildings have been demolished; and which was last used for a purpose falling within Use Class B1 (business), C1 (hotels), C2 (residential institutions), C2A (secure residential institutions) or D2 (assembly and leisure), or as a school.]

Development is not permitted by Class CA if the new buildings provided would cover more than 50% of the total area of the site, or if the total floor space of the new buildings provided would exceed 2,500 square metres; nor is development under this class permitted if the land was last used more than 10 years before the date on which the developer applies for prior approval under paragraph CA.2(1)(b) [see below]. Development is also precluded where the site is, or forms part of a site of special scientific interest, a safety hazard area, or a military explosives storage area. [For the definition of these terms, see my book - A Practical Guide to Permitted Changes of Use.]

Development under Class CA cannot be carried out where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of any temporary building provided is within 5 metres of the boundary of the curtilage of that residential land. The reference to “Part C of the Schedule” is to all or any of the use classes in that part of the Schedule to the UCO, namely C1 (hotels, guest houses, etc.), C2 (residential institutions, including care homes, hospitals, nursing homes, and residential schools, colleges or training centres), C2A (secure residential institutions, such as prisons and detention centres, other secure accommodation and military barracks), C3 (dwellinghouses), and C4 (houses in multiple occupation). The height of any new building provided must not exceed 7 metres.

The permitted development under Class CA is subject to the condition that the site must be approved for use as a state-funded school by the relevant Minister. There is also a requirement for the developer, before beginning the development, to make a prior approval application to the LPA in respect of:

(i) transport and highways impacts of the development,
(ii) noise impacts of the development,
(iii) contamination risks of the site,
(iv) flooding risks on the site, and
(v) the siting and design of the development.

As with other permitted development where a prior approval application is required, the provisions of sub-paragraphs (2) to (13) of paragraph W of Part 3 of Schedule 2 to the GPDO apply in relation to that application, subject to some minor modifications of the wording. Development under Class CA must begin within a period of 3 years starting with the prior approval date and, as noted above, the permission is granted for a maximum of three academic years, but it may be used only once in relation to a particular site. In contrast with the position under Class M of Part 7, any building erected as permitted development under Class CA must be removed from the land at the end of the third academic year or, if earlier, when it is no longer required for use as a state-funded school, and the land must be restored to its condition before the development took place, or to such other condition as may be agreed in writing between the local planning authority and the developer.

Amendments have also been made to Class M of Part 7 (relating to the erection, extension or alteration of a school). These amendments to Part 7 apply to all school buildings built or extended under Part 7, Class M. The limits in respect of the cumulative gross floor space of any buildings erected, extended or altered have been changed. These were (i) 25% of the gross floor space of the original school, college, university or hospital buildings; or (ii)100 square metres, whichever is the lesser. The latter has been replaced by a limit of 250 square metres in the case of a school, and 100 square metres in all other cases. The limit still applies to the lesser of these two alternatives.

Paragraph M.1(b) precluded development that would be within 5 metres of a boundary of the curtilage of the premises, but this limitation now applies only to a college, university or hospital building. Paragraph M.1(ba) now provides that development is precluded in the case of a school, where any land adjacent to the site is used for a purpose within Part C of the Schedule to the Use Classes Order (residential purposes), if any part of the proposed development is within 5 metres of the boundary of the curtilage of that residential land. [See above for the reference to “Part C” of the schedule to the UCO.]

The development permitted by Part 7, Class M, is precluded where a building has changed use by virtue of Class S of Part 3. This exclusion of permitted development under Class M of Part 7 now extends also to a building which was erected by virtue of Class CA of Part 4, but this exclusion does not apply to a building erected under Class C of Part 4 (see paragraph O in Part 7).

© MARTIN H GOODALL

Preclusive conditions – Court of Appeal judgment

Followers of this blog, and readers of my first book (“A Practical Guide to Permitted Changes of Use”) will be aware of my considerable interest in this topic. An appropriately worded condition in a planning permission can preclude the operation of the General Permitted Development Order. The operation of section 55(2)(f) of the 1990 Act (and Article 3(1) of the Use Classes Order) can be similarly precluded by such a condition. But difficulties have arisen where the wording of an allegedly preclusive condition does not refer expressly to the GPDO and/or to section 55(2)(f) and the UCO.

I commented on this issue at some length on 30 August 2016, when I blogged on the first instance decision in Dunnett Investments Limited v. SSCLG [2016] EWHC 534 (Admin), in which judgment was handed down on 11 March last year. I won’t repeat what I wrote there, but readers may wish to refresh their memory by looking at that blog post.

One particular aspect of the case that caused me concern was that this judgment seemed to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, on the one hand and, on the other hand, Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither of these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the Classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. Contrary to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

It is understandable that a preclusive condition need not necessarily refer expressly to section 55(2) (f) or to Article 3(1) of the UCO. This would appear to be confirmed by those judicial authorities that have dealt with this issue, such as City of London Corporation v SSE (1971) 23 P. & C. R. 169, and also Rugby Football Union v SSETR [2001] EWHC 927 and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)). But a planning permission (such as that granted by Article 3(1) of the GPDO) should not in my view be precluded except by clear words, and I would still call in aid the observations, in particular, of Farquharson LJ and of Sir David Nicholls in this regard in Dunoon Developments v. SSE (1993) 65 P&CR 101.

However, I am sorry to say that today’s decision by the Court of Appeal in Dunnett Investments Ltd. v. SSCLG [2017] EWCA Civ 192 has gone the other way, and the first instance judgment in that case has been upheld. It is clear that the Court of Appeal, like the judge at first instance, placed considerable reliance on the decision of the Supreme Court in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, which encourages the concept of ‘implied’ conditions (contrary to the previously accepted position, per Widgery LJ, in Trustees of Walton on Thames Charities v Walton and Weybridge DC[1970] 21 PMCR 411 at 497).

The wording of the condition in Dunnett Investments was :

“The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

The view of the Court of Appeal was summed up in this passage from the judgment of Hickinbottom LJ:

“Looking first at the words used, I do not consider the construction of the condition either difficult or unclear. Read straightforwardly and as a whole, as Patterson J found (notably at [43]-[44]), the natural and ordinary meaning of the words used is that the condition allows planning permission for other uses but restricted to that obtained upon application from the Council as local planning authority, and excludes planning permission granted by the Secretary of State by means of the GPDO. In particular, with due respect to Mr Katkowski’s submissions to the contrary, in my view, “express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”

In his view, the interpretation he favoured did not require the reading in, or reading out, of any words. On the other hand, the construction pressed by Mr Katkowski would take away all substance from the condition, leaving it entirely empty; the first part (“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987…”) merely reiterating the scope of the grant, no more than emphasised by the second part (“…and for no other purpose whatsoever…”), whilst the third part or tail (“… without express planning consent from the Local Planning Authority first being obtained”) would be empty because it would include all means of granting planning permission whether by the planning authority or the Secretary of State. The condition would thus have no discernible purpose. It is a tenet of construction, falling within the umbrella of “sensible” interpretation as championed in Trump International, that it must have been the intention that a condition has some content and purpose. In context, this condition could not sensibly have been merely emphatic, which is all it would be if Mr Katkowski’s submission were correct.

Hickinbottom LJ added that the context in which the condition must be construed included the planning history of the Site – which, importantly, showed that the Council was anxious to maintain close control over the planning use to which the Site was put – and, more importantly still, the reason for the condition as set out in its own paragraph 2. That confirmed that it was imposed to enable the Council to maintain control over the use of the Site, by considering the merits of any proposal, in the light of its “particular character and location”. In other words, as Patterson J put it at first instance, “the sensitivity of the area to potentially unsympathetic uses was protected”. That was inconsistent with reliance by an applicant upon rights under either the GPDO or the UCO. Again, his lordship did not see any force in the submission that this clear reason is undermined by the reason expressed in the 1982 permission for the use then permitted, namely “to enable the [Council] to exercise proper control over the development and because the site is in an area where new industrial development would not normally be permitted”. The 1982 use was highly restricted, and the reason explained why a very narrow industrial use was being permitted. In his view, it did not undermine the clear words of the reason given for the more relaxed, but nevertheless considerably restricted, use permitted in 1995.

For all those reasons, Hickinbottom LJ was quite satisfied that the condition did properly exclude the operation of the GPDO; and that Patterson J was correct to reject the appellant’s argument to the contrary. Patten LJ agreed, and the appeal was accordingly dismissed.

© MARTIN H GOODALL

“Planning involves no law”, says QC

Country Life magazine is not exactly a bundle of laughs, but it did make me laugh out loud last week, when I read an interview in the magazine with Christopher Boyle QC of Landmark Chambers.

In the course of this he is reported to have said on the subject of town planning: “There’s almost no law in it. Most of the public law principles were established in about 1965 and haven’t changed since.” My wife spotted this article, and handing it to me with a broad grin said, “So you’ve been wasting your time for the past 35 years on all those cases you’ve fought, and doing all that writing about planning law!”

Actually, I think I know what Christopher Boyle meant, because he added, “It’s about evidence, facts arguments, and particularly expert opinion.” If one thinks purely in terms of section 78 appeals against the refusal of planning permission, I wouldn’t disagree with this second remark. In the past, I did a fair number of housing appeals, and major retail appeals (superstores), and quite frankly I found it rather boring, precisely because it involved so little law. This is why I moved away from that sort of work into what I would broadly describe as “troubleshooting” – enforcement, compliance, lawful uses, and the legal interpretation of the voluminous body of legislation, both primary and subordinate, that makes up the corpus of our planning law.

Those of us who enjoy a good legal argument (and I certainly include my colleagues in Keystone Law’s planning law team among this number) find the law involved in town and country planning absolutely fascinating, not least because it is ever-changing. Quite apart from endless tinkering with the legislation by successive governments, there is a constant flow of judgments from the superior courts on all sorts of planning law topics, often involving issues of interpretation (of which the East Herts case on which I reported last week is a typical example).

Actually, the interview in Country Life (written by Clive Aslet) is an entertaining read. I see that Christopher Boyle and I do in fact have two interests in common. His favourite building is the Radcliffe Camera (I agree), and we clearly share a love of P G Wodehouse’s Blandings Castle novels. I suspect, however, that our political views might be rather different.

But enough of this airy persiflage; I must get back to the riveting contents of the Town and Country Planning (Use Classes) Order 1987 (as amended), which will form a central part of my next book, currently in draft and due to be published later this year. I’m afraid it won’t be as much fun to read as one of Wodehouse’s period farces. But it’s what I do.

© MARTIN H GOODALL

Barn conversions under Class Q - Sustainability of location

On Friday, 13 May 2016, I published a post on this topic in which I drew attention to the fact that, notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there were still some LPAs seeking to resist permitted development under Class Q on the basis of ‘sustainability of location’. The appeal decision that prompted me to pen that piece was at Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675]. The LPA had attempted to argue that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The appeal was nevertheless allowed, and I speculated that East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. (This rather upset the legal people at East Herts, and I got a tetchy email from them about it.)

The Sawbridgeworth appeal decision was pretty-well judge-proof on this issue, because as a matter of fact and degree the Inspector had found that the location was not unsustainable in any event. Whether the LPA were deliberately spoiling for a fight on this issue or not, they did later find another appeal decision (at Broxbourne Common ) which they decided to take to the High Court. This challenge was heard on 1 February, and judgment was given by Dove J yesterday, 9 March - East Herts DC v. SSCLG [2017] EWHC 465 (Admin). I wrote in my review of forthcoming cases on New Year’s Eve that my money would be on the Secretary of State to win this one, and so it proved.

The dispute, as before, centred around the words of paragraph Q2(1)(e) - “whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3 (dwelling houses)”, and the gloss put on these words by the Secretary of State in the revision of the online PPG published in March 2015. This stated that “The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.” It suggested that the LPA should therefore judge whether the location and siting of the building would make it impractical or undesirable to change use to a house, and explained that impractical or undesirable are not defined in the regulations but the LPA should apply a “reasonable ordinary dictionary meaning”. Impractical would mean “not be sensible or realistic” and undesirable would mean “harmful or objectionable”, and it emphasised that if the building is in a location “where the local planning authority would not normally grant planning permission for a new dwelling” this is “not a sufficient reason for refusing prior approval”. The developer had argued that if the meaning of these words is to be an ordinary dictionary definition found in the English dictionary this would not refer to planning definitions, so that the use of the word “Harmful” would not automatically mean harmful to the green belt.

The Council, on the other hand, relied on the NPPF (and in particular paragraph 55). The planning officers considered that the location of the building was in an unsustainable location and no significant enhancement would be achieved by the conversion. They had reviewed the changes made to the PPG, in terms of what is meant by impractical or undesirable for the change to residential use, but remained of the view that the site was undesirable, in that it would be harmful and objectionable to allow a change of the use of the building to residential in a fundamentally unsustainable location. The Council therefore refused the prior approval application on the grounds that: “the proposal would create an isolated dwelling in the countryside away from key services and infrastructure such as public transport, schools and shops. The location of the building is undesirable for use falling within Class C3(dwelling houses) of the Schedule to the Use Classes Order and it would result in an unsustainable form of development contrary to the provisions of the National Planning Policy Framework.”

In the appeal that followed, the LPA contended that there was conflict between the PPG’s guidance and the terms of the Order. It was contended that the guidance could not alter the proper interpretation of the 2015 Order. The Council had sought legal advice as to whether its interpretation of this matter was correct as a matter of law. The advice received stated that as a matter of law, the GPDO requires the Council, when considering whether or not to grant prior approval for the conversion of an agricultural barn to a dwelling, to take into account all policies of the NPPF that would ordinarily be relevant to the question of the practicality or desirability of allowing such development in whatever location is proposed. They therefore argued that paragraphs. 108 and 109 of the PPG (which suggested that an LPA must exclude such policies of the NPPF from consideration) were wrong. For that reason the Council had taken account of the NPPF in determining this prior approval application, as required by the Order.

In allowing the appeal, against this decision, the Inspector pointed out that the Planning Practice Guidance (PPG) provided the most up-to-date guidance on the interpretation of Class Q and she had attached substantial weight to paragraphs 108 and 109 of this document. In the appeal, the Council had contended that the proposal would create an isolated dwelling in the countryside, and that the location of the building was unsustainable. On this basis, the Council stated that the building is undesirable for a use falling within Class C3. However, in the Inspector’s view, the PPG makes it clear that it does not apply a test in relation to the sustainability of the location. As such, she could not agree with the approach adopted by the Council in terms of the sustainability issues raised in relation to paragraphs 49 and 55 of the NPPF. The Council claimed that there was a conflict between the PPG and the requirements of the Order. However, in the Inspector’s view there is no conflict between the general presumption in favour of sustainable development set out within the NPPF and the very clear guidance identified at paragraphs 108 and 109 of the PPG in relation to this part of the GPDO. In light of all the evidence, it could not therefore be argued that it would be impractical or undesirable to convert the building to residential use.

Whilst the PPG spoke in terms of “sustainability” of location it was agreed between the parties at the hearing before the Court that in truth what is being addressed in paragraph 108 is “accessibility” of location, both in terms of the generation of travel demand and distances to work, services and facilities and also in terms of the ability to obtain access to destinations by choice of modes of travel and in particular slow modes. This concept is of course a key ingredient in the much broader multi-faceted concept of sustainable development.

Counsel for the Secretary of State drew the judge’s attention to the Explanatory Memorandum to the GPDO at the point when the class was introduced. He submitted, based on the Explanatory Memorandum, that the purpose of introducing this class of permitted development was to promote the provision of new homes. Thus he submitted that the interpretation of the term “undesirable”, and the application of the NPPF, had to be undertaken bearing in mind that the purpose of introducing this class of permitted development was to enable the change of use of agricultural buildings to dwellings in circumstances where permission might not be granted pursuant to a conventional application. On this point, having considered the provisions of the Explanatory Memorandum, his lordship was satisfied that the purposes of the creation of this new permitted development right was clearly to “deliver more homes” and to increase housing supply. The outcome which the legislation has in mind is clear and is intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the NPPF relating to location.

Turning to the meaning of the term “undesirable” in this context, the judge was satisfied that it is a word that calls for an exercise of planning judgment. He had reached that conclusion since it is an adjective with a potentially broad meaning and purview, used within the context of an approval process in planning legislation. The planning judgment to be made arises in the context of the qualified entitlement that Class Q creates. Given that conclusion, an error of law could only arise if that planning judgment were affected by one of the traditional public law grounds of challenge.

The assessment of location, as distinct perhaps from other aspects of the desirability of location such as the impact of odour or dust from adjacent developments, has to be examined through the prism of the purpose of the legislation. To apply to the Class Q prior approval process, in making this planning judgment, the policies of the NPPF with the same rigour in respect of accessibility of residential development as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition will very frequently be in the open countryside. Thus whilst accessibility is not an irrelevant consideration when considering paragraph Q2(1)(e), the bar in relation to the test of unacceptable inaccessibility will necessarily be set significantly higher than it would in the context of an application for planning permission.

His lordship did not consider that this approach to the exercise of the planning judgment of what may be “undesirable” about the location of the agricultural building in the context of Class Q is in any way undermined by the reference within paragraph W(10)(b) to the requirement for the local planning authority to have regard to the NPPF when considering a prior approval application “as if the application were a planning application”. That application of the NPPF must be undertaken in the context of a proper understanding of the test being considered, namely in this case undesirability of location. It is in the context of an understanding of paragraph Q2(e) that the NPPF must be applied. The NPPF cannot be applied so as to frustrate the purpose of identifying the class of permitted development in the first place.

He therefore concluded that the PPG, in paragraphs 108 and 109, reflects this approach. These paragraphs helpfully explain that there is no specific requirement within paragraph Q2(1) in relation to accessibility of location, and also that the fact that an agricultural building is in a location where planning permission would not normally be granted for accessibility reasons will not amount to a sufficient reason for refusing prior approval. Both of those observations are apposite and reflect the approach to requiring a far stronger objection on accessibility grounds than would be required to resist a planning application, for the reasons which have already been set out above.

The judge specifically rejected the LPA’s argument that, by virtue of paragraph 55, the location of the agricultural building to be converted was in a location which was unacceptable for accessibility reasons, and that the application of paragraph 55 to the location leads to the conclusion that the proposal should be refused. In essence this argument was the equivalent of an argument that the prior approval should be refused because the agricultural building was in a location where the LPA would not normally grant planning permission for a new dwelling on accessibility grounds. That was a contention which was contrary to the guidance in paragraphs 108 and 109 which, for the reasons he had already given, his lordship accepted is consistent with sensible parameters for the exercise of the planning judgment required. It followed that the Inspector was entitled, as she did in her decision letter, to conclude that the Council’s objections based on paragraph 55 of the NPPF could not be maintained. Having rejected that contention, the Inspector was entitled to form the view that it could not be argued that “it would be impractical or undesirable to convert the building to residential use”.

It followed that the Inspector was entitled to form the conclusions which she did. Her rejection of the LPA’s argument that paragraph 55 of the NPPF should be applied with full rigour to this prior approval in forming her planning judgment on whether the change of use of this agricultural building was in an “undesirable” location, was clearly open to her and reflected the particular context in which her judgment had to be reached.

In the appeal, an application for the costs of the appeal was made on behalf of the developer, on the basis that the LPA had ignored the “precise and specific” PPG guidance and continued to take decisions contrary to earlier appeals where their views had been rejected. The Inspector had made an award of costs for this reason. On this basis, her decision on the costs application was also unassailable. Having reached the justifiable conclusions which she did, and having disagreed with the approach of the Council for entirely proper reasons, she was entitled to form the view in reliance upon earlier appeal decisions of a like nature that the Council’s refusal in the present case was one which was unreasonable and that costs should be awarded.

The Council’s challenge to both the appeal decision and the costs decision was accordingly dismissed.

Bearing in mind that a number of similar planning appeals had already been allowed where LPAs had sought to resist permitted development under Class Q on grounds similar to those canvassed by East Herts in this case, applying the very clear ministerial guidance in paragraphs 108 and 109 of the PPG, it is hardly surprising that the Council lost this appeal, with costs, and that their challenge to that decision in the High Court then failed. East Herts have, however, done us all a favour by putting an end to any lingering doubts that LPAs may have had on this issue.

© MARTIN H GOODALL

Reasons for granting planning permission yet again (and finally?)

I have reported on several cases in the past few weeks in which the need for a local planning authority to state its reasons for granting planning permission has been reviewed by the courts. On Tuesday, 17 January, I reported on the case of R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016. The Supreme Court has now given permission to the LPA and the developer to appeal against the Court of Appeal’s decision.

The appeal should be heard in the Supreme Court towards the end of the year, and it is to be hoped that a definitive ruling will then be given as to whether or not an LPA is under any legal obligation to state its reasons for granting planning permission and, if so, in what circumstances and to what extent.

Watch this space around the end of the year.

© MARTIN H GOODALL